FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Francine Bérubé-Savoie, alleges that the respondent, the Deputy Minister of Human Resources and Skills Development Canada (HRSDC), abused its authority in non-advertised appointment processes used to staff an acting Quality Assurance Advisor and an acting Team Leader position at the SC‑CPP/OAS Service Canada – Canada Pension Plan / Old Age Security) Call Centre in Bathurst, New Brunswick (NB). Those positions are classified at the PM‑03 group and level. More specifically, the complainant submits that the respondent should not have chosen non‑advertised appointment processes and that the rationale for choosing a non‑advertised process does not support the selection of one of the appointees. The complainant also submits that the respondent showed favouritism when the delegated manager appointed two employees from her section to those positions, that the respondent did not select the most qualified persons, and that no written assessment supports the appointment of one of the appointees. The complainant also alleges that the acting appointment notifications were not posted in a timely manner.

2 The respondent denies all the allegations.

3 The Public Service Commission (PSC) was not represented at the hearing, but it provided written submissions and described its relevant policies relating to, in particular, choice of appointment process, assessment, and selection and appointment. The PSC did not take a position on the merits of the complaints.

4 For the reasons set out below, the Public Service Staffing Tribunal (the Tribunal) finds that the complainant did not establish that the respondent abused its authority in these non-advertised processes.

Background

5 In 2008, the respondent held an advertised internal appointment process to staff Quality Assurance Advisor and Team Leader positions, at the PM‑03 group and level, at the SC‑CPP/OAS Call Centre (the Call Centre) in Bathurst. That Service Canada call centre handles telephone calls relating to the Canada Pension Plan and Old Age Security. At the end of the process, a pool of qualified candidates (the 2008 pool), valid until February 17, 2010, was established for each type of position. The complainant and Nathalie Paulin, one of the appointees, were included in that pool.

6 In November 2009, in order to fill a vacant Quality Assurance Advisor position, the respondent used a non-advertised internal appointment process to appoint Rachelle Goral on an acting basis for the period from November 9 to December 31, 2009. Ms. Goral was a Citizen Service Officer (PM‑01) at the Call Centre.

7 On December 22, 2009, the respondent launched two advertised internal processes, one to staff Quality Assurance Advisor positions and one to staff Team Leader positions on an indeterminate, term or acting basis.

8 The advertised internal appointment process for the Quality Assurance Advisor positions had not yet been completed when the respondent extended Ms. Goral’s acting appointment for the period from January 1, 2010, to March 31, 2010, and for one last time from April 1 to 30, 2010, all by means of non-advertised processes.

9 In January 2010, when a Team Leader received an acting assignment elsewhere in the organization, the respondent appointed Nathalie Paulin, also a Citizen Service Officer (PM‑01) at the Call Centre, to an acting Team Leader position for the period from January 25 to March 26, 2010. That appointment was made using the 2008 pool. At the end of March 2010, the respondent used a non-advertised process to extend Ms. Paulin’s acting appointment to June 25, 2010.

10 On June 3, 2010, the respondent published an Information Regarding Acting Appointment notification for Ms. Goral’s appointment for the period from November 9, 2009, to April 30, 2010, and another for Ms. Paulin’s appointment for the period from January 25, 2010, to June 25, 2010.

11 On June 17, 2010, the complainant filed two complaints pursuant to ss. 77(1)(a) and 77(1)(b) of the Public Service Employment Act, S.C. 2003, c. 33, ss. 12 and 13 (the PSEA), in relation to these acting appointments.

Issue

12 The Tribunal must decide whether the respondent abused its authority in these non-advertised acting appointments.

Analysis

Did the respondent abuse its authority in these non-advertised acting appointments?

13 Margot Payne was the delegated manager responsible for these appointment processes. She explained that, between 2003 and 2010, she was the senior manager for three call centres in Bathurst, NB: the Employment Insurance Call Centre, the Canada Pension Plan and Old Age Security Call Centre (the call centre at issue in this case), and the Employer Call Centre. Similar call centres exist in other parts of the country. The call centres under Ms. Payne’s responsibility had approximately 250 employees, including 14 Quality Assurance Advisors and 14 Team Leaders. Each team was made up of 15 Citizen Service Officers, who handled incoming calls. The Quality Assurance Advisors audited all the calls handled by the Citizen Service Officers and recorded their observations in quarterly reports that were submitted to the Team Leaders, who would provide appropriate feedback to their officers.

14 The complainant is a Plan Determination Officer (PM-01) with HRSDC’s Employment Insurance Premium Reduction Program in Bathurst, and is currently an acting Team Leader (PM-03), Government Annuities. She does not work at a call centre and has never worked for Ms. Payne. She described the various steps she took in 2009 to inform Ms. Payne of her continued interest in a position at the Call Centre.

Choice of non-advertised processes

15 The complainant submits that the respondent should have issued a call for interest to the people in the 2008 pool to staff the positions at issue, and selected the most qualified candidates from that pool or, alternatively, should have held an advertised process. In the complainant’s view, by choosing to use non-advertised processes, the respondent abused its authority and violated the merit principle and the core values of fairness and transparency set out in the PSEA.

a. Quality Assurance Advisor position

16 Ms. Payne stated that, in November 2009, an employee’s absence required her to staff a Quality Assurance Advisor position at the Bathurst Call Centre.

17 Ms. Payne explained that, because of operational needs and the requirements of the quality assurance program, she could not leave that position vacant. It needed to be staffed as quickly as possible. In fact, significant changes had been made to the quality assurance program and since summer 2009, all calls handled by Citizen Service Officers were subject to audits by Quality Assurance Advisors. That had a major impact on call centre operations and on the essential qualifications of the advisor positions, which now required extensive knowledge of the Canada Pension Plan and Old Age Security programs, and increased knowledge of procedures and online tools. Ms. Payne did not want to use the 2008 pool because the qualifications had changed. Anyone remaining in the 2008 pool of qualified persons for Quality Assurance Advisor positions had not been assessed against the position’s new qualifications. For that reason as well, Ms. Payne did not want to extend the validity of the 2008 pool when it expired in February 2010.

18 Ms. Payne stated that because there was an urgent need, she could not take the time to issue a call for interest or hold an advertised process. She indicated that she firmly believed that she needed someone with experience because of the quality assurance program now in place. She therefore chose to use a non-advertised appointment process to appoint Ms. Goral to the position. Ms. Goral was a Citizen Service Officer at the Call Centre who had a great deal of experience and who had demonstrated that she was very familiar with the programs and the online tools. Ms. Goral was interested in the position. Ms. Payne appointed her on an acting basis from November 9, 2009, to December 31, 2009. Ms. Payne stated that she had believed that it would be a short-term need and that the advertised internal process launched on December 22, 2009, would be concluded quickly, but that was not the case. As a result, she had to extend Ms. Goral’s acting appointment until March 31, 2010, and then until April 30, 2010.

b. Team Leader position

19 Ms. Payne stated that, in January 2010, she also had to replace a Team Leader who had received an acting appointment elsewhere within the organization.

20 To staff the position during that absence, she asked Human Resources (HR) to search the 2008 pool for the person who best met the specific criteria she had established. However, at the hearing, Ms. Payne stated that she could not recall exactly what criteria she had given to HR for that search. HR gave her the name of Ms. Paulin, a Citizen Service Officer at the Call Centre. Ms. Payne appointed her as acting Team Leader from January 25, 2010, to March 26, 2010. At the end of March 2010, the person whom Ms. Paulin was replacing had still not returned but the 2008 pool had expired and the appointment process launched on December 22, 2009, was still under way. For this short-term need, Ms. Payne decided that it would be faster and more effective to simply extend Ms. Paulin’s appointment until June 25, 2010, by means of a non-advertised process, pending the results of the advertised process launched in December 2009 or the return of the incumbent of the position.

21 Ms. Payne referred to the considerations and criteria set out in HRSDC’s Policy on the Criteria Applicable to Non-Advertised Appointment Processes [translation] to justify the non-advertised appointments of Ms. Goral and Ms. Paulin:

CONSIDERATION:

The nature of the work and the urgency and short duration of the appointment make it unlikely that the position could be staffed in time to meet the need.

CRITERION:

Acting appointments longer than four months, or an acting appointment of less than four months when the same person is appointed to the same position on an acting basis within 30 calendar days.

[translation]

22 Ms. Payne acknowledged that Ms. Goral’s first acting appointment had already ended and that Ms. Paulin’s would end shortly when, on June 2, 2010, she signed the rationales for the choice of non-advertised processes. Ms. Payne explained that the delay was due to the fact that, during those periods, she was working on another project and someone else was replacing her. The HR consultant had also changed. She specified that there had nevertheless been many discussions before those appointments were approved.

23 For a complaint under s. 77(1)(b) of the PSEA to be successful, the complainant must establish, on a balance of probabilities, that the choice to use a non-advertised process was an abuse of authority. See Jarvo v. Deputy Minister of National Defence, 2011 PSST 0006, at para. 7.

24 The mere fact that the respondent chose to conduct non-advertised appointment processes to staff these positions is not an abuse of authority in itself. There is no preference given to advertised processes over non‑advertised ones in the PSEA. Section 33 of the PSEA clearly states that the deputy head, as the PSC’s delegate, has the discretion to choose between these two types of processes.

25 Ms. Payne has explained why she chose non-advertised processes for these acting appointments. Operational needs and the requirements of the quality assurance program meant that she needed to staff the vacant Quality Assurance Advisor position as quickly as possible and a call of interest or an advertised process would have taken too long. With regard to the Team Leader position, the 2008 pool has expired and Ms. Payne decided to extend Ms. Paulin’s acting appointment to meet this short-term need.

26 The complainant alleges that the rationale for the choice of a non‑advertised process to staff the Quality Assurance Advisor position does not support the respondent’s decision to appoint Ms. Goral, and that a written assessment of the candidate was required.

27 HRSDC’s Policy on the Criteria Applicable to Non-Advertised Appointment Processes [translation] states that a written rationale is required for every non‑advertised appointment process. That rationale must demonstrate how the non‑advertised process meets the established criteria and the appointment values. That requirement is explicitly stated in the PSC’s Choice of Appointment Process Policy, with which the deputy head must comply under s. 16 of the PSEA.

28 The Tribunal has reviewed the rationales for these non-advertised processes. None of the rationales indicate how these appointments meet the established criteria or how they are consistent with the appointment values and guiding values. However, the fact remains that rationales were submitted—albeit late—and that Ms. Payne adequately explained in her testimony how these appointments met HRSDC criteria.

29 As has been established by the Tribunal, whether or not an error or omission constitutes an abuse of authority will depend on the nature and seriousness of the error or omission. See, for example, Tibbs v. Deputy Minister of National Defence, PSST 0008. In this case, while the written rationales should have been more detailed and while they are not fully compliant with HRSDC and PSC policies and guidelines, the Tribunal finds that that does not demonstrate a negligence or carelessness that would constitute abuse of authority.

30 The complainant has not established that the respondent abused its authority when it chose to use non-advertised processes for these acting appointments.

Favouritism toward the employees in Ms. Payne’s section

31 The complainant alleges that the delegated manager showed favouritism toward the employees in her section in selecting people for these positions.

32 The complainant stated that, in fall 2009, in her capacity as a union steward, she attended a union-management meeting at which Ms. Payne indicated that she would choose from among the employees in her section to staff various positions. The complainant filed into evidence documents that, in her view, demonstrate that a number of appointments made by Ms. Payne were given to employees in her section.

33 Payne stated that she did not recall making such a comment and that, if she did make it, it may have been taken out of context. She stated that she would not choose only from among the people in her own section, except perhaps to meet a short‑term need.

34 Section 2(4) of the PSEA reads as follows: “For greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”. As the Tribunal established in Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, at para. 39, it is personal favouritism, not other types of favouritism, that constitutes abuse of authority.

35 While it is true that Ms. Goral and Ms. Paulin both worked in Ms. Payne’s section, that does not establish that they were shown personal favouritism. In fact, it is not unreasonable for a manager to look to the employees in his own unit when he must staff a position on an acting basis, especially for an urgent or short-term need. Ms. Payne has adequately explained how and why she chose Ms. Goral and Ms. Paulin.

36 The complainant’s evidence is insufficient to support a finding of personal favouritism in this case. Thus, she did not establish that Ms. Payne abused her authority or showed personal favouritism toward Ms. Goral and Ms. Paulin when she selected them for these acting appointments.

The qualifications and assessment of the appointees

37 The complainant alleges that the respondent acted on inadequate material in assessing Ms. Goral and Ms. Paulin for the purpose of extending their acting appointments. She submits that the respondent did not demonstrate that Ms. Goral was better qualified than the individuals in the area of recourse, or that Ms. Paulin was better qualified than the other individuals in the 2008 pool. Everyone should have had the chance to be considered and assessed. These non-advertised processes prevented the people in the pool and other potential candidates from gaining experience.

38 The Tribunal does not accept the complainant’s argument. The respondent was not required to consider more than one person for these positions. Section 30(4) of the PSEA clearly states that the PSC is not required to consider more than one person in order for an appointment to be made on the basis of merit. The authority to consider only one candidate falls within the discretion explicitly provided for in that section. Furthermore, in Jarvo, at para. 32, the Tribunal clearly stated that there is no right of access to every appointment opportunity.

39 The respondent was not required either to appoint the most qualified person from the pool. It has been clearly established that the former system of relative merit no longer exists. See, for example, Clout v. Deputy Minister of Public Safety and Emergency Preparedness, 2008 PSST 0022, at para. 32.

40 The complainant also submits that no written assessment supports Ms. Goral’s appointment, and that Ms. Goral was not assessed properly. The complainant states that Ms. Goral’s assessment was based solely on Ms. Payne’s personal knowledge of her and on Ms. Goral’s interest in the position.

41 The complainant submits that Ms. Goral’s assessment was completed only after her acting appointment ended on April 30, 2010.

42 The respondent filed into evidence a document purported to be the written assessment of Ms. Goral’s qualifications. The document is the statement of merit criteria (SMC) for the position at issue. The following declaration, signed by Ms. Payne on June 2, 2010, as the senior manager of the Service Canada Call Centres, appears at the bottom of that document: “I certify that Rachel Goral meets the essential qualifications of the position.”

43 According to the complainant, that document does not constitute a written assessment that is consistent with the PSC’s Selection and Appointment Policy.

44 Ms. Payne explained that Ms. Goral was interested in the Quality Assurance Advisor position, but she selected her mainly because of her extensive experience. Referring to the qualifications listed in the SMC and the conditions of employment for the Quality Assurance Advisor position, Ms. Payne explained how she determined that Ms. Goral met the requirements of the position. Ms. Goral already held a position in the PM group, and the qualification standards for that group require a secondary school diploma. Ms. Goral’s work as a Citizen Service Officer at the Call Centre demonstrated that she had the necessary experience and knowledge. She contributed to the section’s work, was suitably familiar with the programs, and used the online support tools on a daily basis. Ms. Goral’s job performance also demonstrated that she met the ability and personal suitability criteria.

45 Ms. Payne has acknowledged that she signed Ms. Goral’s assessment on June 2, 2010. She explains that she had been working on another project and that someone else had been replacing her as senior manager at the time of the appointment. In addition, the HR Advisor had changed. Ms. Payne states that the matter was nevertheless extensively discussed before Ms. Goral’s acting appointment was extended on January 1, 2010.

46 Section 36 of the PSEA authorizes the PSC or the delegated authority to use any assessment method that it considers appropriate to determine whether a person meets the qualifications. As has been established by the Tribunal, personal knowledge of a candidate is a legitimate assessment tool. See Visca v. Deputy Minister of Justice, 2007 PSST 0024, and Kitchen v. Deputy Minister of Citizenship and Immigration Canada, 2008 PSST 0028.

47 The Tribunal finds that there was no abuse of authority when Ms. Payne used her personal knowledge to assess Ms. Goral’s qualifications.

48 Ms. Goral’s assessment was recorded late, on June 2, 2010, several months after the acting appointment’s effective date and more than a month after the appointment ended.

49 The PSC’s Selection and Appointment Policy explicitly requires the deputy head to ensure, among other things, that the persons appointed meet all the essential qualifications and that the reasons for the appointment decision have been documented. Thus, before making an appointment, the respondent must be able to confirm that an individual meets the essential qualifications for the position and must document the reasons for the decision. Failure to satisfy these obligations could call into question the fairness and transparency of the appointment process.

50 It would have been preferable for Ms. Payne to give a more detailed rationale in support of her conclusion that Ms. Goral met the requirements of the position. Nevertheless, Ms. Payne has explained why the assessment was registered late, and the appointment was not renewed beyond April 30, 2010.

51 Furthermore, although the complainant did not make any specific allegations regarding Ms. Paulin’s assessment and although, as noted earlier, the Tribunal is concerned by the fact that Ms. Payne was unable to list and did not record the criteria that she provided to HR, and which she used to select Ms. Paulin from the pool, the fact remains that Ms. Paulin qualified as part of an advertised internal appointment process.

52 The Tribunal finds that these omissions are not serious enough to constitute an abuse of authority.

Delayed posting of the acting appointment notifications

53 The complainant submits that the respondent abused its authority and violated the PSEA by not publishing the Information Regarding Acting Appointment notifications in a timely manner.

54 Ms. Goral was first appointed as an acting Quality Assurance Advisor for a period of less than four months, from November 9, 2009, to December 31, 2009. The appointment was then extended to March 31, 2010, which increased the period of the acting appointment to more than four months, and then extended again to April 30, 2010. However, the respondent published only one Information Regarding Acting Appointment notification, on June 2, 2010, for the entire period from November 9, 2009, to April 30, 2010.

55 In the case of Ms. Paulin, she was first appointed to the Team Leader position for a period of less than four months, from January 25 to March 26, 2010, and her appointment was then extended to June 25, 2010. Again, the respondent posted only one Information Regarding Acting Appointment notification, and not until June 2, 2010.

56 Section 13 of the Public Service Employment Regulations, SOR/2005-334 (the PSER) clearly states that notification of acting appointments of four months or more must be provided when the appointments are made or proposed. Each extension constitutes an appointment that is subject to PSEA and PSER requirements. See Wylie v. President of the Canada Border Services, 2006 PSST 0007, at para. 20. It is important to notify the people in the area of recourse as soon as possible after an acting appointment has been made, not months later or after the acting appointment has ended, as was the case for Ms. Goral’s acting appointment. The acting appointment notifications should have been published as soon as it was decided to extend these acting appointments for a period of four months or more.

57 In Robert and Sabourin v. Deputy Minister of Citizenship and Immigration, 2008 PSST 0024, the Tribunal found that the failure to notify persons in the area of recourse in a timely manner was an omission. In this case, by publishing the acting appointment notifications after or near the end of the acting appointments, the respondent prevented employees in the area of selection from exercising their right of recourse in relation to these appointments in a quick and efficient manner, which violates the very foundation of those rights of recourse.

58 Although Ms. Payne has explained the reason for the delay, the Tribunal wishes to point out that, regardless of personnel changes, the respondent remains fully responsible for ensuring that notifications are published in a timely manner. However, such a delay does not necessarily lead to a finding of abuse of authority.

59 The acting appointments were not extended further. The Tribunal finds that, in this case, the delays in publishing the notifications do not constitute an abuse of authority.

Decision

60 The Tribunal finds that these processes were not properly documented from the outset. The respondent should have prepared a more detailed rationale each time the acting appointments of Ms. Goral and Ms. Paulin were extended. Moreover, the assessments of the appointees should have been more detailed and demonstrated how they met the required qualifications. In addition, the acting appointment notifications should have been published at the time the appointments of Ms. Goral and Ms. Paulin were extended. However, at the hearing, the respondent provided details about the rationales, the assessments and the notifications, and demonstrated that the appointments of Ms. Goral and Ms. Paulin were justified. Overall, the facts and the evidence do not show that there was an abuse of authority.

61 For all these reasons, the Tribunal finds that the complainant did not demonstrate that the respondent abused its authority in these appointment processes. Accordingly, the complaints are dismissed.

Lyette Babin-MacKay
Member

Parties of Record

Tribunal Files:

2010-0352 and 2010-0353

Style of Cause:

Francine Bérubé-Savoie and the Deputy Minister of Human Resources and Skills Development Canada

Hearing:

October 24 and 25, 2012
Bathurst, New Brunswick

Date of Reasons:

January 22, 2013

APPEARANCES:

For the complainant:

Sylvain Archambault

For the respondent:

Léa Bou Karam

For the Public
Service Commission:

Written submissions